Excerpt: - - a better view would therefore be to hold that the expression 'after previous publication' goes with the expression 'purporting to have been made'.the rule-making authority must, therefore, make rules after previous publication, if it purports to do so, it shall be conclusive proof that the rule or byelaw has been duly made......made.' the contestation that section 24 of the prevention of food adulteration act empowers the state government to make rules or byelaws after previous publication and therefore clause (5) of section 23 of the general clauses act would come into play cannot be sustained. it is true that in the gazette notification, section 24 of the prevention of food adulteration act is referred to. a better view would therefore be to hold that the expression 'after previous publication' goes with the expression 'purporting to have been made'. the rule-making authority must, therefore, make rules after previous publication, if it purports to do so, it shall be conclusive proof that the rule or byelaw has been duly made. as section 23 prescribes lengthy procedure of previous publication, sub-section.....

Judgment:

V.B. Raju, J.

1. This is an appeal by the Food Inspector, Godhra Borough Municipality, against the acquittal of respondent No. 1 under Section 16 of the Prevention of Food Adulteration Act, One of the main grounds of acquittal is that the rules made by the Gujarat Government under Section 24 of that Act were not framed after the previous publication but the previous publication was made by the Bombay Government and not by the Gujarat Government. In answer to this, the learned Counsel for the appellant relies on Clauses (1) and (5) of Section 23 of the General Clauses Act. The whole Section 23161 reads as follows:

23. Provisions applicable to making of rules or by-laws after previous publication.- Where, by any Central Act or Regulation, a power to make rules or byelaws is expressed to be given subject to the condition of the rules or byelaws being made after previous publication, then the following provisions shall apply, namely:

(1) the authority having power to make the rules or byelaws shall, before making them,, publish a draft of the proposed rules or byelaws' for the information of persons likely to be affected thereby;

(2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the Government concerned prescribes,

(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;

(4) the authority having power to make the rules or byelaws, and, where the rules or byelaws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or byelaws from any person with respect to the draft before the date so specified;

(5) the publication in the Official Gazette of a rule or byelaw purporting to have been made in exercise of a power to make rules or byelaws after previous publication shall be conclusive proof that the rule or byelaw has been duly made.

At first sight, Clause (5) seems to be a complete answer. But we have to see whether the words 'after previous publication' qualify the words 'to have been made' or whether qualify the words 'power to make the rules'. The expression 'purporting to have been made' must go with the expression 'after previous publication', and then only the sense would De proper. Clause (5) should read thus; 'The publication in the Official Gazette of a rule or byelaw purporting to have been made after previous publication in exercise of a power to make rules or byelaws shall be conclusive proof that the rule or byelaw has been duly made.' The contestation that Section 24 of the Prevention of Food Adulteration Act empowers the State Government to make rules or byelaws after previous publication and therefore Clause (5) of Section 23 of the General Clauses Act would come into play cannot be sustained. It is true that in the Gazette Notification, Section 24 of the Prevention of Food Adulteration Act is referred to. A better view would therefore be to hold that the expression 'after previous publication' goes with the expression 'purporting to have been made'. The rule-making authority must, therefore, make rules after previous publication, If it purports to do so, it shall be conclusive proof that the rule or byelaw has been duly made. As Section 23 prescribes lengthy procedure of previous publication, Sub-section (5) dispenses with proof that such procedure has been followed only in cases where the rules purport to be made after previous publication. In this case, the notification does not purport to have been made after previous publication. Therefore, Clause (5) of Section 23 of the General Clauses Act does not help the learned Counsel for the appellant. Clause (1) of Section 23 of the General Clauses Act also does not help, because the question in controversy is who is the authority who made the previous publication and not the manner of previous publication. The authority having power to make rules or byelaws mentioned in Clause (1) can only exercise the power on the date when the rules and byelaws are made, The contention that the relevant date is the date of the previous publication is rejected.

2. It is next contended relying on Section 24 of the Prevention of Food Adulteration Act that the State Government referred to in that section does not necessarily mean the State Government, which made the previous publication and that the State Government which made the rules need not be the State Government, which made the previous publication. The contention that the State Government means the State Government on the date of the previous publication, which had the power to make rules on the date of the publication is rejected.

3. It is next contended that Section 24 of the Prevention of Food Adulteration Act should be construed in view of Section 161 of the Bombay Reorganization Act, 1960. Section 89 of the Act reads as follows:

89. Power to construe laws.-Notwithstanding that no provision or insufficient provision has been made under Section 28 for the adaptation of a law made before the appointed day, any Court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating the application in relation to the State of Maharashtra or Gujarat, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the Court, tribunal or authority.

It refers to a law which is to be enforced by the Court. This Court is not trying to enforce any clause of the General Clauses Act. There is, therefore, no question to construe any clause of the General Clauses Act in a peculiar manner in view of the Bombay Reorganization Act. The Bombay Reorganization Act has nothing to do with the General Clauses Act.

4. The learned Counsel for the appellant has relied on Sidhpur Electric Industrial Co., Ltd. v. State of Gujarat ILR (1964) Guj 647. It is true that the Court has power to construe law where such power is given, e.g., Section 89 of the Bombay Reorganization Act and para 14 of the Order referred to in the Gujarat case. But as stated, no clause of the General Clauses Act is to be enforced. It is true that Section 24 of the Prevention of Food Adulteration Act is sought to be enforced. But this Court cannot construe the said Section 24 to mean that the rules made by the Gujarat State Government without previous publication would be law, although the previous publication was made by the Bombay State Government. There was nothing to prevent the Gujarat Government from making a publication; the rules of which previous publication were made by Bombay State had not become rules and had not become law. The Court cannot, construe Section 24 of the Prevention of Food Adulteration Act to mean that the previous publication by the Gujarat Government is not necessary in the case of the rules made by the Gujarat Government. In this case, the previous publication was made by the Bombay Government. That Act of the Bombay Government does not become an Act of the Gujarat Government by anything in the Bombay Reorganization Act. The question is whether the previous publication by the Bombay Government would be an Act of the Gujarat Government under the law and in particular under the Bombay Reorganization Act, 1960., Clause (d) of Section 2 of the Bombay Reorganization Act reads as under:

'Law' includes any enactment, ordinance, regulation, order, byelaw, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the State of Bombay.

Section 88 of the said Act reads as follows:

88. Power to adapt laws.-For the purpose of facilitating the application in relation to the State of Maharashtra or Gujarat of any law made before the appointed day, the appropriate Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.

Section 88 relates to power to adapt laws made before the appointed day. The contention that the rules made after previous publication by the Bombay Government would be a law cannot be accepted. It is contended that the previous publication amounts to a notification under Clause (d) of Section 2 of the Bombay Reorganization Act. Even if it is so, it would be doubtful whether that can be treated as law. But even if it can be, the words 'having immediately before the appointed day, the force of law in the whole or in any part of the State of Bombay' which are found in Clause (d) of Section 2 of the Bombay Reorganization Act cannot be applied to the previous publication of the rules which are not actually made. If the rules are actually made in 1959, then the question of previous publication would itself be absent. In my opinion, the words 'having immediately before the appointed day the force of law in the whole or in any part of the State of Bombay' qualify the words 'any enactment, ordinance, regulation, order, byelaw, Rule, scheme, notification or other instrument' referred to earlier in the said Clause (d). Clause (d) cannot obviously apply to any enactment, ordinance, regulation, order, byelaw, rule, scheme, etc., in the whole world. Whether it is a rule or scheme or notification, it must have before the appointed day the force of law in the whole or in any hart of the State of Bombay before Clause (d) can be applied. More over, the adaptation in Section 88 must be made within one year from the appointed day. The rules framed by Gujarat Government were not made within one year from the appointed day. Nor do the rules purport to be an adaptation. The contention of the learned Counsel for the appellant is rejected.

5. The learned Counsel for the appellant has also argued that the other two grounds given by the lower Court for acquittal are wrong. But it is not necessary to consider them.